Don't force Alaskans to pay for elective abortions

My turn

Posted: Thursday, May 24, 2001

By A columnSEN. PETE KELLY

The editorial pages across the state have recently been filled with frantic ravings from the political left about the Legislature's restriction of public money to fund elective abortions. You know, abortion, that deeply private matter that the courts insist on using public money to fund.

But this debate is not over the right to have an abortion. The U.S. Supreme Court has already decided that. This is about the separation of powers and who writes the state budget. It is also about the court's irresponsible use of the right to privacy to achieve radical ends.

Our state constitution plainly defines who writes the state budget. It is the Legislature - not the governor, not the courts - only the Legislature. But should the Legislature be free to use the power of the purse to achieve unconstitutional ends? Of course not.

The Legislature recognizes the court's authority when Bill of Rights issues are involved. For instance, the court should strike down appropriations by legislatures that facilitate racism or the kinds of injustices that took place in the Jim Crow era of the South. This, however, is clearly not happening in the Alaska Legislature. Nothing the Legislature is currently doing will take away anyone's right to an abortion, or anything else for that matter. We're just saying: If you want an abortion the people of Alaska should not have to pay for it.

The Legislature has made a number of attempts to restrict state funding for abortions to incidences of rape, incest and the life of the mother in the same way federal funds are restricted in all 50 states. But each time, the Alaskan courts have reversed the Legislature because of the privacy clause in the state constitution.

Beyond the tortured logic of requiring public money for a private right, there are other issues that put the court on shaky legal ground. For one thing, the language of the privacy clause specifically requires the Legislature to implement privacy provisions. But whenever the Legislature has tried, the court has simply ignored this very specific language.

Also, the court has tried to treat abortion as an absolute right - on par with the freedom of speech. However, because abortion is nowhere to be found in our state constitution, the court uses the privacy clause to justify on demand, state-funded abortions. But according to our constitution, even the right to privacy is not absolute. The constitution uses strong language to modify the right to privacy when it says "the Legislature shall implement this section." Privacy is treated quite differently than freedom of speech, religion, association and all the other bill of rights provisions that, unlike privacy, leave no room for the meddling hands of the Legislature.

Alaskans view the right to privacy as a guard against government intrusion - we just want "Big Brother" to leave us alone. I agree. Unfortunately, some in the court think differently. They use privacy as a tool to achieve radical social change that cannot otherwise gain support.

The most twisted application of the "right to be left alone" came when the court used the privacy doctrine to reverse a law passed by the Legislature requiring a parent's consent when their child receives an abortion. Let's examine this for a moment. According to the judge, because of your right to be left alone, a government social worker, a teacher, or a counselor can take your teen-age daughter to a clinic, without your knowledge or consent, and have invasive surgery done to her to terminate your unborn grandchild.

That, my fellow Alaskans, scares the living daylights out of me. This is the kind of "Orwellian" intrusion into our private lives that was only in works of fiction when the privacy amendment was enacted in 1972.

I do not advocate reducing our right to privacy, but it is time to reassess what this right has become. It is no longer a right to be left alone. Instead, it has become a tool of the court to enact social change without public process. As a state we need to assert the simple modifier to this expansive right: "In Alaska you have the right to privacy - but we don't have to pay for it."